Contempt:How the Right is Wronging American Justice

Author: Catherine Crier

Catherine Crier is the youngest judge to have been elected in Texas. She is a television
host and a former journalist for ABC, CNN and Fox News. She has written two
other books, New York Times best sellers: The Case against
Lawyers, (2002) and A Deadly Game (2005).

Crier's subtitle for this book: How
the Right Is Wronging American Justice. She describes a few on the Right as distorting
history and undermining the rule of law in pushing their agendas. And she criticizes the textualism of Anthony
Scalia and the "strict constructionism" of Robert Bork.

The Founding Fathers, she claims, were unspecific enough in writing the
Constitution to give thinking room for the future. When they wanted to be
specific, she writes, they were. For example: declaring the minimum age for the
president at thirty-five. The founders, she adds, "did not shackle the
Constitution with an overkill of specifics." They knew, she writes, that "they
could not anticipate every conceivable issue that might brush up against the
Constitution."

Crier is for a strict interpretation of the Constitution where the
Constitution is specific: as in its statement that
Congress shall make no law
respecting an establishment of religion, or prohibiting the free exercise
thereof.

She points out that flogging was legal at the time of the founding of the
Constitution, and that abortion was too. The question, according to Crier, is how to apply reasoning
to judgments about the ultimate law of the land, the Constitution, with reason
in accord with contemporary values and society. She quotes James
Madison – traditionally regarded as the Father of the United States Constitution.

Is it not the glory of the people of America, that, whilst they have paid
a decent regard to the opinions of former times and other nations, they have
not suffered a blind veneration for antiquity, for custom, or for names, to
overrule the suggestions of their own good sense, the knowledge of their own
situation, and the lessons of their own experience? [The Federalist Papers, essay 14.]

She criticizes justices Scalia and Thomas for their adherence to a theory of
Original Intent, complaining that it is a theory that assumes that the
Constitution has been frozen since its adoption in 1788. "Originalist" judges,
she writes, "supposedly
read the Constitution through the eyes of the framers." According to Original
Intent, she complains, if an activity was permitted during the time of the
framers it is constitutionally protected and any attempt to restrict it is
unconstitutional. She accuses Scalia of attempting to fathom original intent
beyond his ability as an historian. She asks, "if professional historians
often cannot reach a consensus about what
the framers thought about a particular issue, why does Justice Scalia think he
can do better?"

She criticizes Robert Bork, whose nomination to the Supreme Court in 1987 the
Senate rejected. She writes that
Bork "has been engaged in an all-out war with the judiciary." She quotes Bork
complaining of the courts "applying no will but their own," and she writes that "Bork is mad that he can't impose his will on America."

Catherine Crier describes a host of people she believes are on the side of
distorting what judging should be about, among them, Pat Robertson, Jay
Sekulow, Tom Delay, James Dobson.